Cynthia Vanderweyst v. Adolph G. Boudreaux & Beverly B. Kaufman ( 2003 )

  Opinion issued October 2, 2003.  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00928-CV

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CYNTHIA ANN VANDERWEYST, Appellant

V.

ADOLPH G. BOUDREAUX and BEVERLY B. KAUFMAN, Appellees

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On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2002-02251

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MEMORANDUM OPINION

          This is an interlocutory appeal arising from the trial court’s granting of Adolph G. Boudreaux and Beverly B. Kaufman’s plea to the jurisdiction asserting sovereign immunity from Cynthia Ann Vanderweyst’s suit. We reverse and remand the case to the trial court for further proceedings. Background

          This appeal is related to an earlier suit filed by Vanderweyst against Nationwide Housing Systems, Inc. in which Vanderweyst obtained a judgment against Nationwide for $91,280.47. Nationwide perfected its appeal and posted a supersedeas bond with the Harris County Clerk, Beverly Kaufman. The bond was approved by Deputy Harris County Clerk Adolph G. Boudreaux. Although Vanderweyst’s award was in the amount of $91,280.47, the bond was issued for $88,152.00. The surety on the supersedeas bond was American Homestar Corporation, who is allegedly Nationwide’s parent company. Shortly after posting the bond and filing an appeal, Nationwide filed for bankruptcy under Chapter 11. Nationwide’s appeal was abated by the Fourteenth Court of Appeals due to Nationwide’s bankruptcy.

          In January 2002, Vanderweyst filed suit against Boudreaux and Kaufman in their personal capacities. Vanderweyst’s petition claimed that the bond provided by Nationwide was not “good and sufficient,” as required by Texas Rule of Appellate Procedure 24.1.

[T]he bond approved by Mr. Boudreaux on behalf of and as agent of Ms. Kaufman was not good and sufficient as required under Rule 24.1. Mr. Boudreaux owed to Plaintiff a legal duty to exercise ordinary and due care in ascertaining the sufficiency of the sureties . . . . Mr. Boudreaux, acting on behalf of and as agent for Ms. Kaufman, negligently failed to exercise ordinary and due care in ascertaining the sufficiency of Nationwide Housing Systems, Inc.’s supersedeas bond. Mr. Boudreaux, acting on behalf of and as agent for Ms. Kaufman, negligently failed to make ordinary and due inquiry into the sufficiency of the sureties on Nationwide Housing Systems, Inc.’s supersedeas bond.

          . . .

As a direct and proximate result of the occurrence made the basis of this lawsuit, Plaintiff was prevented, by Mr. Boudreaux’s negligent approval of the supersedeas bond, from executing judgment on assets of Nationwide Housing Systems, Inc., which were otherwise subject to judgment execution and/or from executing judgment on the supersedeas bond. Plaintiff has thereby sustained economic damages in the amount of $109,856.11. This amount includes the judgment $91,208.47, plus post-judgment interest in the amount of $18,647.64 for the period from February 3, 2000 to January 20, 2001.

After Vanderweyst filed her petition, Boudreaux and Kaufman answered with a general denial and invoked the affirmative defenses of governmental or sovereign immunity, official immunity, and judicial immunity.

          Boudreaux and Kaufman also filed a motion for leave to file a third party petition. This motion does not appear in the appellate record, but other pleadings show that the motion was directed at Vanderweyst’s attorney, Ralph Shepard. Shepard represented Vanderweyst in the original suit against Nationwide and he continued to represent her in her suit against Boudreaux and Kaufman. In response to Boudreaux and Kaufman’s motion, Shepard retained his own counsel, Scott Rothenberg, who (1) filed a notice of appearance on behalf of Shepard and (2) requested an oral hearing on Boudreaux and Kaufman’s motion.

          The trial court granted Shepard’s request for an oral hearing on the motion to file a third party petition, and the hearing was set for June 3, 2002.

          After filing their motion for leave to file a third party petition, Boudreaux and Kaufman filed a plea to the jurisdiction. Boudreaux and Kaufman asserted that the trial court lacked subject matter jurisdiction over Vanderweyst’s claims because, as Nationwide’s appeal was still pending, judgment had not been rendered on the bond. Further, Boudreaux and Kaufman asserted that

[e]ven if Vanderweyst had a right to collect on the judgment today, and Nationwide could not satisfy the judgment, Vanderweyst has never attempted to collect on the supersedeas bond, nor does she allege. Vanderweyst’s complaint that the supersedeas bond is insufficient or inadequate is therefore premature because it is possible that she will not prevail on appeal, or if she does prevail, it is possible she may recover on the bond.

Accordingly, Boudreaux and Kaufman asserted that Vanderweyst’s claims were not yet ripe for adjudication. Boudreaux and Kaufman’s plea to the jurisdiction was set for ruling on May 27, 2002. Vanderweyst’s attorney was notified that Boudreaux and Kaufman’s plea was to be submitted “without the necessity of an Oral Hearing, unless demand for one is made.” Notice of the submission was also sent to Shepard’s attorney.

          On appeal, Vanderweyst alleges that the legal assistant for Scott Rothenberg, who was counsel for Shepard (Vanderweyst’s original attorney and still merely a potential third-party defendant) called the trial court’s clerk to request an oral hearing on Boudreaux and Kaufman’s plea to the jurisdiction and to schedule that hearing for the same day as the hearing on the motion for leave to file a third party petition. According to Rothenberg’s legal assistant, the trial court clerk’s office told her that there would be no problem in having an oral hearing on the plea to the jurisdiction on June 3, 2002. However, on May 28, the day after the plea had originally been set for written submission, the trial court granted Boudreaux and Kaufman’s plea to the jurisdiction and ordered that Vanderweyst take nothing in her suit against Boudreaux and Kaufman.

          On May 31, Scott Rothenberg sent written notice of the supposed June 3 oral hearing on the plea to the jurisdiction to opposing counsel. On May 31, Rothenberg also filed an opposition to both Boudreaux and Kaufman’s motion for leave to file a third party petition and their plea to the jurisdiction. The record does not contain any response to the plea to the jurisdiction from Vanderweyst’s attorney.

          On June 3, 2002, the trial court granted Boudreaux and Kaufman’s motion for leave to file a third party petition.

          On June 27, 2002, Vanderweyst, who had since retained Rothenberg to be her own attorney as well as Shepard’s attorney, filed a motion for new trial and a motion for reconsideration of the plea to the jurisdiction. In her motion for new trial, Vanderweyst requested that the court take judicial notice of the contents of its file. Vanderweyst attached the sworn affidavit of Rothenberg’s legal assistant describing the events that had led Rothenberg to believe the plea to the jurisdiction had been set for oral hearing on June 3, 2002. Vanderweyst further asserted that, had she known that the Court would hear the plea by submission on May 27, 2002, rather than at the oral hearing on Monday, June 3, 2002, she would have presented “meritorious defenses” to the plea to the jurisdiction. Vanderweyst’s motion for new trial went on to argue that her claims were ripe for adjudication because she had suffered injury to her property rights because the bond she held had diminished in value, although the full amount of the diminishment was still unknown. Vanderweyst’s motion for new trial was overruled by operation of law.

          On appeal, Vanderweyst contends that the trial court erred (1) when it granted Boudreaux and Kaufman’s plea to the jurisdiction because the claims she had pled were, in fact, ripe, and (2) when it overruled Vanderweyst’s motion for new trial.

  Plea to the Jurisdiction

          In her first point of error, Vanderweyst argues the trial court erred by granting Boudreaux and Kaufman’s plea to the jurisdiction. A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject matter jurisdiction poses a question of law, we review rulings on a plea to the jurisdiction de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). The plaintiff bears the original burden of pleading facts that show the trial court has subject matter jurisdiction; therefore, we examine a plaintiff’s good faith factual allegations to determine whether the trial court has jurisdiction. Texas Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). We must determine whether, even if all the allegations in a plaintiff’s pleadings are true, there is an incurable jurisdictional defect that prevented the trial court from hearing the case on the merits. See State v. Sledge, 36 S.W.3d 152, 155 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).  

           In addition to the pleadings, a court may also consider other relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Ind. Sch. Dist., 34 S.W.3d at 554. Unless there is fraudulent pleading to confer jurisdiction or the face of the petition affirmatively demonstrates a lack of jurisdiction, the trial court must liberally construe the plaintiff’s allegations in favor of jurisdiction. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996).

          However, a trial court may grant a plea to the jurisdiction if the pleading, even after amendment, does not state a cause of action upon which to invoke the trial court’s jurisdiction. See Bybee v. Fireman’s Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960). If a party pleads facts that affirmatively demonstrate an absence of jurisdiction, such a defect is incurable, and immediate dismissal of the case is proper. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).

          Boudreaux and Kaufman’s plea to the jurisdiction alleged that the trial court did not have subject matter jurisdiction because, even taking all of Vanderweyst’s claims in her petition as true, her claims were not yet ripe for adjudication. Ripeness implicates subject-matter jurisdiction and emphasizes the requirement of a concrete injury in order to present a justiciable claim. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000).

          Under the ripeness doctrine, we consider whether, at the time a lawsuit is filed, the facts are sufficiently developed “so that an injury has occurred or is likely to occur, rather than being contingent or remote.” Id. at 851-52. We focus on whether the case involves “uncertain or contingent future events that may not occur as anticipated or may not occur at all.” Id. at 852. Thus, by focusing on whether the plaintiff has a concrete injury, we avoid premature adjudication and advisory opinions. Id. A case is not ripe when determining whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or events that have not yet come to pass. Id.

          In their plea to the jurisdiction, Boudreaux and Kaufman contended that a judgment of damages is a conditional award until the conclusion of the appeals process, and because Nationwide’s appeals had not yet concluded, Vanderweyst’s claim regarding the insufficiency of the bond had not yet ripened. Boudreaux and Kaufman further pointed out that, even if the appeal had concluded, Vanderweyst had not shown that she had attempted to collect the full amount of the judgment from either Nationwide or American, and, until she made such an attempt and was unable to collect her judgment, her claim against Boudreaux and Kaufman was not ripe for adjudication.

          However, Boudreaux and Kaufman’s analysis misconstrues the full import of Vanderweyst’s petition. Vanderweyst’s petition alleged that, as a result of the approval of the supersedeas bond, she was unable to execute judgment on the $91,280.47 she was awarded after her suit against Nationwide. Her petition states that “as a direct and proximate result of the [negligence], [Vanderweyst] was prevented . . . from executing judgment on assets of Nationwide Housing Systems, Inc., which were otherwise subject to judgment execution and/or from executing judgment on the supersedeas bond.” Thus, Vanderweyst alleges two distinct injuries: her inability to execute judgment immediately after the judgment was awarded by the imposition of a supersedeas bond and her alleged inability to collect the amount of the bond after Nationwide’s appeal.

          We examine the first injury alleged in Vanderweyst’s petition—her lost opportunity to execute the judgment against Nationwide. Taking the facts stated in her petition as true, if Boudreaux was in fact negligent in approving the bond, Vanderweyst suffered an injury because, if Boudreaux had exercised due care, he would have refused to approve the bond as it read when presented to him. According to her petition, Vanderweyst would have then had an opportunity to execute the judgment from the trial court and receive cash in hand from Nationwide. Admittedly, Vanderweyst’s window of opportunity, once Boudreaux disproved the bond, is unknown. Nationwide could have filed a second “good and sufficient bond” days or even moments after Boudreaux disproved the first bond, thus suspending execution. Additionally, even if she had been able to exploit her opportunity between the rejection of the first bond and the approval of any subsequent sufficient bond, Vanderweyst may have had to pay some or all of the judgment back to Nationwide if Nationwide’s appeal was successful. However, according to her pleadings, she at least would have had the benefit of possessing or attempting to possess the $91,280.47 judgment for the brief period that she was entitled to do so. The loss of that benefit, whatever it may ultimately be determined to be worth, constitutes the first of Vanderweyst’s pled injuries. These damages may be determined at trial to be impossibly speculative. However, such an issue is fodder for a summary judgment motion, not a dismissal for lack of ripeness in a plea to the jurisdiction. Vanderweyst’s pleadings show that some “injury” had, in fact, occurred—thus, this part of her claim, such as it was, was ripe for adjudication.

          Having held that the plea was improperly granted as to the first cause of action, we need not address Vanderweyst’s second claim. See Harris County Flood Control Dist. v. PG & E Texas Pipeline, L.P., 35 S.W.3d 772, 773 (Tex. App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (When the trial court has jurisdiction over any claim against a governmental entity, the court should deny that entity’s plea to the jurisdiction.)

          Accordingly, Vanderweyst’s first point of error is sustained.

Motion For New Trial

          In her second point of error, Vanderweyst contends that the trial court erred when it denied her motion for new trial after the court granted Boudreaux and Kaufman’s plea to the jurisdiction.

          Having already held that the plea to the jurisdiction was improperly granted, we need not address this point of error.

Conclusion

          We reverse and remand the cause to the trial court for further proceedings.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Taft, Jennings and Hanks.

Justice Jennings, dissenting.